The Coalition is working to fight back an attempt to expand the death penalty in New Hampshire yet again. HB 351-FN specifically makes “a person who knowingly causes the death of a child guilty of capital murder.” It is being sponsored by: Werner Horn, Jeanine Notter, James Spillane, Ryan Smith, and Francis Gauthier. Here is the full text of the bill: http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=183&type=4.

The bill will be heard in the Criminal Justice and Public Safety Committee (click here for a list of committee members). The hearing date is Tuesday, February 7 at 2pm in LOB 204 (more information here).

Last year, NH pro-death penalty forces tried to expand executions to those guilty of acts of terrorism. With help from our members, we were able to secure an “inexpedient to legislate” vote from the Criminal Justice committee on the (de)merits of the bill and ultimately defeated the bill. We see this new attempt as a cynical ploy to expand the death penalty at any cost.

HB 351-FN is a solution in search of a problem

Child murders are very low in New Hampshire and our state has a good record of appropriately prosecuting them. In the most recent case of a child death last year in NH, the mother was clearly mentally and emotionally unequipped to deal with the demands of a special needs child. Rather than executing such individuals, we should provide better and more timely social and mental health services to parents in distress.

HB 351-FN would be extremely expensive

The Department of Justice has stated that “death penalty cases are more expensive to investigate and litigate than non-death penalty homicide cases.” The state of New Hampshire has already spent more than $5 million over the last 10 years for the prosecution, defense and other non-counsel services of a single death penalty case (Michael Addison).

HB 351-FN increases the likelihood of wrongful convictions and the execution of innocent parents

Parents and others are often convicted of murdering children when in fact no crime has occurred at all. In these heartbreaking cases, parents who tragically lost their children to sickness or accident are then wrongfully convicted and sentenced to death based on faulty evidence and/or prosecutorial misconduct.

Any time a child dies it is highly emotional. Child deaths bring great public and political pressure to attribute blame and solve the crime, and this is precisely when the criminal justice system has the most chance of getting it wrong. This is why child murder cases are often riddled with conclusions based on junk science, suggestive interrogation leading to false witness testimony, wrongful witness identification, and prosecutorial misconduct.

There are numerous examples where inadequately trained medical examiners wrongfully attribute a death of a child from natural or accidental causes as homicide. One of the most common attributions for child death leading to murder prosecutions is Shaken Baby Syndrome, but recent scientific and forensic advances are casting doubt on such once-firm conclusions.[1]

Kirk’s visit in September was dynamic and impactful. Many activists and students came out to Portsmouth Public Library, Plymouth State University, and Southern NH University to watch his movie and to engage in lively question-and-answer sessions. Kirk talked about the state of our criminal justice system, the problems with eyewitness identification, bad legal defense, prosecutorial bias, junk science being used to convict the innocent, and many other related issues.

Kirk’s overall message was, “You can’t climb over the execution of the innocent to get to the satisfaction of killing those who kill others.” Few can speak about this with such authenticity and authority as Kirk does. Kirk also spoke about his work with Witness to Innocence and efforts underway in other states such as Nebraska (overturning legislative repeal via referendum) and California (two opposite ballot initiatives).

At the SNHU event we were fortunate also to have present a friend of Kirk’s and fellow DNA exoneree, Dennis Maher, who spent 19 years in prison before being released from a life sentence in Massachusetts for rapes he did not commit. Dennis’s story was no less powerful. You can read more about him here: http://www.innocenceproject.org/cases/dennis-maher/.

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Delaware Supreme Court Rules Death Penalty is Unconstitutional

8.2.16 | Today, the Delaware Supreme Court issued an order declaring Delaware’s death penalty statute unconstitutional in light of the U.S. Supreme Court’s recent ruling in Hurst v. Florida. The Hurst decision found that juries, not judges, must ultimately decide whether a defendant should receive a death sentence. The decision is attached.

Last year, Delaware’s State Senate voted to replace the death penalty with a sentence of life without parole for the second time in three years. The bill was supported by Governor Jack Markell, despite narrowly failing to get enough votes in the House earlier this year. Given the political obstacles that would have to be overcome to amend the statute, it is unlikely the General Assembly will move to revive the death penalty–rendering the state without a valid death penalty statute, just like New York state.

Delaware now joins the growing majority of states that have abandoned the death penalty in law or in practice. Including Delaware, nineteen states and the District of Columbia formally ban capital punishment, and 12 states haven’t carried out an execution in approximately 10 or more years (CO, NH, KS, PA, CA, AR, WY, MT, NC, NV, OR, and NE). Three of those 12 states have gubernatorial moratoriums on executions in place (Colorado, Oregon, and Pennsylvania) and Nebraska’s conservative legislature voted to replace the death penalty with life without parole last year. That decision will be decided by the voters in November. Washington state also has a gubernatorial moratorium in place.

Harvard report highlights the lion-sized role in modern death penalty of just four men and a woman, and how capital punishment is a ‘personality-driven system’

One had a poster from the movie Tombstone on his office wall with “Justice is coming” emblazoned on it; another used a miniature model of an electric chair as a paperweight; a third, dubbed the “Queen of death”, said she was “passionate” about judicially killing people and described the emotion of watching an execution as a “non-event”.

What they all had in common was a vast appetite for putting men and women to death. What additionally made them special was that they all had the power to turn such unusual tastes into sentences.

As head prosecutors in their counties, just five individuals have been responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who are currently awaiting execution in the US, it is equivalent to one out of every seven.

Or express the figure another way: of the 8,038 death sentences handed down since the death penalty was restarted in the modern era 40 years ago this week, some one in 20 of them have been the responsibility of those five district attorneys alone.

The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman.

They are: Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; Bob Macy of Oklahoma County; Lynne Abraham of Philadelphia County; and Johnny Holmes of Harris County, Texas.

Just how extraordinary this elite club of lawyers is can be seen in the biography of Bob Macy. Until his death in 2011, he was known as Cowboy Bob because of his traditional frontier dress sense: he always wore cowboy boots, a large cowboy hat, a black string tie, a black suit and a white shirt.

Over the course of 21 years as the top prosecutor in Oklahoma County, Macy put 54 people on death row. That gave him the distinction of sending more people to their potential deaths than any other district attorney in the nation.

And many did actually go to their deaths. According to records compiled by the Fair Punishment Project, 30 of those prisoners were executed.

That might have presented an ethical burden to some, but not to Macy. As he sat beneath his Tombstone poster, he ruminated on the “patriotic duty” of prosecutors to aggressively pursue death sentences. He was proud of having sent a 16-year-old, Sean Sellers, to the death chamber before the US supreme court banned the execution of juveniles in 2005.

The problem is that Macy’s sense of legal propriety was not as honed as his sense of patriotic duty. The Harvard report notes that about a third of the 54 capital sentences he secured were later challenged and misconduct uncovered; three death-row prisoners were exonerated.

A similarly disturbing pattern of misconduct and error is recorded by the other deadliest prosecutors. Britt, who died in April, obtained 38 death sentences in the course of his 14-year career.

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The Connecticut Supreme Court on Thursday again said that it would be unconstitutional to execute inmates on the state’s death row, upholding a decision from the same court last year effectively banning the death penalty in the state.

In a decision in August, the state’s justices ruled that Connecticut could not execute death-row inmates for crimes committed before the state largely abolished capital punishment. Under a law signed in 2012, Connecticut agreed to abandon the death penalty going forward, while also retaining it as an option for crimes committed before that bill became law.

After an inmate named Eduardo Santiago — convicted of murdering someone in 2000 — challenged his death sentence, a divided Connecticut Supreme Court said last year that he could not be executed because the 2012 law “creates an impermissible and arbitrary distinction” between crimes committed before and after that measure went into effect. (Santiago was re-sentenced to life in prison without parole in December.)

The state’s high court upheld its earlier ruling in a 5-to-2 decision handed down Thursday in a case focusing on Russell Peeler, a man sentenced to death for his role in the 1999 killings of a woman and her 8-year-old son.

The justices ruled that Peeler must instead be sentenced to life in prison without the possibility of parole, because his earlier sentence “must be vacated as unconstitutional in light of” last year’s decision. Three justices wrote concurring opinions, while two authored dissents, one of which said the ruling last year “inflicted [damage] on the rule of law” that “must be repaired.”

Gov. Dannel P. Malloy (D), who signed the 2012 law abolishing the death penalty, reiterated his opposition to capital punishment on Thursday and focused on how the new ruling will keep the death-row inmates from ever seeking parole.

“Today’s decision reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom,” he said in a statement. He added: “Our focus today should not be on those currently sitting on death row, but with their victims and those surviving family members. My thoughts and prayers are with them on this difficult day.”

According to the state Department of Corrections, Connecticut has 11 inmates on death row. Kevin T. Kane, the chief state’s attorney, said his office would “move forward to re-sentence” the remaining death row inmates so that they are all given sentences of life imprisonment without parole.

“I appreciate having been granted the opportunity to present the state’s position on all of the issues the present court raised about Connecticut’s death penalty,” Kane said in a statement. “The court has now spoken and, as always, we respect its decision.”

In other cases, though, inmates have remained on death row and the effect on their sentences has been uncertain after their states abandoned the death penalty. Like Connecticut, Maryland — the last of the states to formally outlaw the death penalty— abolished the practice while exempting those already on death row. Before he left office, former governor Martin O’Malley (D) commuted the sentences of the remaining inmates to life terms.

Connecticut has executed only one inmate since the U.S. Supreme Court reinstated the death penalty in 1976. The state considered abolishing the death penalty in 2009, but Malloy’s predecessor, M. Jodi Rell, vetoed a bill that year that would have eliminated the practice.

Her decision came as the state was reeling after a horrifying home invasion there two years earlier. Two men broke into a family’s home before sexually assaulting a woman, Jennifer Hawke-Petit, and her 11-year-old daughter, Michaela. The two men also beat the girl’s father, William, before killing Jennifer, Michaela and the couple’s 17-year-old daughter, Hayley. Both men accused in the case — Joshua Komisarjevsky and Steven Hayes — were convicted, found guilty and sentenced to death. This crime was cited as the reason lawmakers compromised in 2012, getting rid of the death penalty while keeping it in place for people, like those two men, who had committed crimes beforehand.

[NHCADP Comment:] Relevance for NH: In no state where the death penalty has been abolished has any death row inmate subsequently been executed. This fact has been cited in the NH Senate to push back against our repeal efforts, making it a referendum on Michael Addison (NH’s sole death row inmate), even though any such law is always prospective and not retrospective. That said, we’re happy that no one is being executed, but our legislative efforts are never aimed at one person. We want to ban the death penalty for all, now and in the future.

2015 saw 1634 executions, the highest number of since 1989, most of which took place in Iran, Pakistan, and Saudi Arabia. Executions in Iran topped the list at 977, most of which were for drug-related crimes and included juvenile offenders, in contravention of international law. The Amnesty report excludes China, which does not reveal its statistics, but which is believed to executive thousands each year. (On 4/19/16, International Business Times reported that China has set the threshold for the death penalty in cases of fraud at three million yuan — $463,000.)

Balancing this news is that four countries moved to abolish the death penalty in 2015: Madagascar, Fiji, Suriname, and Congo. In addition, Mongolia has adopted a new criminal code that will end the death penalty in September of this year.

Here in the US, Pennsylvania Governor Tom Wolf placed a moratorium on executions in February 2015 pending review by a task force and in the process reprieving 5 death row prisoners during the year. In December the PA Supreme Court upheld Gov. Wolf’s authority to take this action, though the death penalty statute remains and the moratorium cannot go on indefinitely. Overall, however, the US is fifth on the list of world countries that executes its citizens, with 28 executions and 53 death sentences in 2015. Japan is the only other “first world” country that continues to use the death penalty, executing 4 people in 2015.

Overall, 102 countries — half of the world — have abolished the death penalty. If we include countries that no longer use it in practice but have yet to remove the statutes, that percentage rises to two-thirds of the world.

It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed

A close look at the grand compromise of 1976.

By Evan J. Mandery

In early April 1976, Potter Stewart, Lewis Powell, and John Paul Stevens met for lunch at the Monocle, a venerable Washington steakhouse, and decided the future of the American death penalty. The three U.S. Supreme Court justices were in a bind. Each harbored substantial misgivings about capital punishment, but each man — Stewart especially — also felt constrained by the issue’s peculiar constitutional history and by the tidal wave of public support that returned the death penalty to the Supreme Court just four years after a splintered court had declared it dead.

In 1972, Stewart had brokered a 5-4 decision holding that the death penalty as then practiced violated the Eighth Amendment’s ban against cruel and unusual punishment. The court’s ruling — in Furman v. Georgia — was a spectacular long shot. Just one term earlier, in 1971, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. Furman seemed headed in the same direction until Stewart struck an eleventh-hour deal with Justice Byron White, who’d been on the fence for most of the term. Stewart would abandon the moral statement against the death penalty that he’d intended to make and would instead say that the problem with capital punishment was excessive arbitrariness.

Arbitrariness thus became the dominant theme in the most splintered decision in Supreme Court history. Each justice in the Furman majority wrote his own solo opinion — meaning that he spoke only for himself. Each emphasized a different aspect of arbitrariness. Some focused on racism. Some focused on the failure of states to condemn only the “worst” criminals. Some focused on the infrequency with which the death penalty was employed. No one said precisely how much arbitrariness violated the Constitution. Surely Stewart understood, as his colleagues must have, that the focus on arbitrariness — as opposed to deeming capital punishment unconstitutional per se — left the door open for states to rewrite their laws. Nevertheless, the justices believed that, as Stewart told his clerks, “The death penalty in the United States was finished.”

That intuition couldn’t have been more wrong. Between the Furman decision and 1976, 35 states passed new death penalty statutes. Seven made the death penalty mandatory for murder. Others, including Georgia, instead attempted to make the process less “arbitrary” by requiring capital jurors to find “aggravating” factors, by separating capital trials into the guilt/innocence and sentencing phases we see today and by guaranteeing appellate review of all death sentences.

The political and legal momentum against Furman forced the justices to reconsider their positions. So, over two days of oral argument beginning on March 30, 1976, the justices evaluated the constitutionality of the various new state approaches, with Georgia’s new statute as the test case. The hearing had the feeling of a heavyweight prize fight, pitting against one another two of the great lawyers of their generation: Solicitor General Robert Bork, who, a decade later, would be nominated to the Supreme Court, and Anthony Amsterdam, principal architect of the NAACP Legal Defense Fund’s victorious strategy in Furman and widely acknowledged as the greatest civil rights lawyer of the 20th Century.

Two days later, on April 2, the justices met in conference to consider the new death penalty laws. Justices William Brennan and Thurgood Marshall said they would reject both the statutes that made a death penalty mandatory for murder as well as statutes that gave jurors the discretion to sentence defendants to death. Justice White and three of the Nixon appointees—Justices William Rehnquist, Harry Blackmun and Chief Justice Warren Burger—said they’d uphold both approaches. The case came down to Justices Stewart and Stevens and Nixon’s fourth appointee, Justice Lewis Powell.

At that Washington steakhouse, the troika, as they’d come to be known, decided to split the baby. They would reject the mandatory statutes, which they regarded as barbaric, but uphold the guided discretion approach. Together with the four Nixon appointees, they formed a 7-2 majority in Gregg v. Georgia, upholding Georgia’s new discretionary law, and, with Marshall and Brennan, a separate 5-4 majority rejecting the mandatory statutes. This Solomonic compromise created the bedrock principles of modern death penalty jurisprudence: that a non-arbitrary death penalty satisfies the Constitution and that the requirement of non-arbitrariness could be satisfied by Georgia’s approach.

The Gregg decision revived the American death penalty. It also began a social experiment. Underlying Gregg is an empirical proposition: legal standards would make capital jury decisions more predictable. “Let’s have them be as guided and as rational as they can be,” Stewart told his law clerk Ron Stern in 1976. Yet in five years of archival research and interviews for my book A Wild Justice, I found not a shred of evidence that any of the justices considered social science data. Certainly none is cited in the opinion. The most striking features of the compromise Stewart, Stevens and Powell embraced was the speed with which it was reached, the absence of supporting empirical evidence, and the three men’s unquestioning faith in the power of law and the state and local officials sworn to carry it out.

Forty years later, the data are in on the court’s grand compromise. How one interprets the results may depend on what’s being asked. If the essential question today is whether the death penalty is still being applied arbitrarily, the answer couldn’t be clearer. Arbitrariness is rampant. But, on the occasion of Gregg’s ruby anniversary, let’s ask a more refined question, which more directly honors the case’s peculiar history: Is arbitrariness less of a problem than it was before the Supreme Court got involved in 1972? In other words, has Gregg worked?

The answer is a conclusive, resounding no. Whether one interprets the Furmandecision to have been about — individually or collectively — excessive racism, a failure to identify the “worst of the worst” among murderers, the death penalty’s sporadic use, or simple geographical randomness, the “guided discretion” statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse.

Almost all of the justices in Furman noted the low percentage of death-penalty eligible murders that resulted in death sentences. They estimated the rate to be between 15% and 20%. From this statistic, the justices drew different conclusions. Brennan and Marshall cited it as evidence that the death penalty had been rejected by contemporary standards of decency (though the truth is they would have opposed the death penalty regardless). White said an infrequently-used death penalty couldn’t adequately deter crime. His idiosyncratic opinion seemed to invite mandatory laws.

A third view seemed to get at something important about what a constitutional death penalty might look like. Not even the most ardent supporters of the death penalty believe that all murderers should be executed. Somewhere a line has to be drawn, and it should be drawn in such a way that juries regularly accept the penalty’s use. For example, if a state restricted its use of the death penalty to mass murderers it presumably would generate a high sentencing rate. As the state broadened its law to include less aggravated kinds of murder its sentencing rate would decline as jurors (or judges) rejected borderline capital charges.

Implicit in Furman was the premise that states had for decades defined the universe of death-eligible murders too widely. Implicit in Gregg was the premise that guiding jury discretion would create some balance between death-eligible cases and actual death penalties. But 40 years of statistics tell us that the death penalty is even rarer than it was before.

In gross terms, U.S. executions have been trending downward for some time. Annual executions peaked at 197 in 1935, hovered between 50 and 100 per year during the 1950s, fell further after the NAACP Legal Defense Fund took on the death penalty in the mid-1960s, and temporarily ended with Furman. Post-Gregg, executions peaked at 98 in 1999. They’ve been declining fairly steadily since. Thirty-five people were executed in 2014. Last year, states killed 28 people, the lowest total since 1991. Death sentences have been dropping too—from more than 300 annually in 1995 and 1996 to 73 last year.

Over this period, death-sentencing rates — meaning the percentage of murders eligible for the death penalty who are actually sentenced to death — have experienced a parallel decline. Almost every state-level study has identified a rate either at the low end of, or substantially below, Furman’s 15%-20% threshold. In California, the nation’s largest producer of death sentences, the most comprehensive statewide studies have identified a sentencing rate between 4.6% and 5.5%. In a review of 34 years of Connecticut death penalty cases, Yale’s John Donohue found a sentencing rate of 4.4%. A study of all Colorado murder convictions between 1999 and 2010 revealed a rate of 0.56%.

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